What exactly does it take to get your day in court? That’s the question on everyone’s minds during the second month of the Supreme Court’s Fall 2015 Term. The struggle to keep a case in court long enough to reach its merits is emerging as a recurring theme throughout the November arguments.
In Monday’s Spokeo, Inc. v. Robins, the Court will consider whether Congress can create a private right to sue independent of other injury, with the fate of important environmental and civil rights statutes potentially hanging in the balance. Wednesday’s Shapiro v. McManus will examine the ability of a single judge to dismiss the sort of voting-rights challenge that would normally require convening a three-judge panel. And next week’s Tyson Foods, Inc. v. Bouaphakeo will determine how similar the claims of individual plaintiffs must be to maintain a class action that might otherwise be too costly to bring as separate cases.
Meanwhile, the Court will continue last month’s pattern of holding state courts accountable for their criminal justice rulings Monday in Foster v. Chatman, which involves a classic Batson challenge to racially-motivated jury selection. And, like in last month’s Ocasio v. United States, the Court in Torres v. Lynch will rule on the meaning of a single phrase in a federal statute with huge ramifications for future criminal prosecutions.
Read on to find On the Docket’s preview of the Supreme Court’s November docket, and as always, don’t forget to check back for analysis and commentary from prominent legal scholars when opinions are announced!
November 2
Foster v. Chatman
14-8349, Ga. S. Ct.
An all-white jury sentenced Timothy Tyron Foster, a 19-year-old African American boy from a neighborhood known as the projects in Rome, Georgia, to death in 1987. The crime was a gruesome one: he was convicted of breaking into the house of a 79-year-old former elementary school teacher, breaking her jaw, sexually molesting her, and ultimately strangling her to death. However, none of the of the jurors convicting him shared his racial identity. In fact, of the five original black jurors, four were struck using preemptory challenges and a fifth was struck for cause. A preemptory strike is used by attorneys to strike jurors without having to justify their reasoning to a judge, while a “for cause” strike would require the attorney to give the judge a reason and the judge would determine if the reason sufficed.
Foster’s lawyers challenged the preemptory strikes under the 1986 Supreme Court ruling, Batson v. Kentucky. In holding preemptory strikes unconstitutional when based solely on race, the Court set forth a three-step process to determine whether or not the preemptory strikes were appropriately used. The test involves (1) a demonstration by the defendant that the prosecutors had used their preemptory strikes on racial basis, (2) the prosecutors offer of non-racial reasons for the strikes, and (3) the trial judge’s determination as to which argument was more compelling.
The original Batson challenge in Foster was unsuccessful. However, in 2006, Foster’s lawyers used the Georgia Open Records Act to obtain the prosecutors’ jury selection notes. These notes revealed new evidence that is at the center of this month’s Supreme Court argument, including the fact that each black juror was marked with a “B” and had his or her race circled on the juror selection card. Additionally, a list of “Definite NO’s” was created numbering the black jurors alongside a comment that read “if it comes down to having to pick one of the black jurors, Garret might be okay.” With this new evidence, Foster appealed to the Georgia state habeas court, which decided the new evidence was not enough to overturn the previous Batson claim. The Georgia Supreme Court summarily denied the appeal from the ruling, and the Supreme Court will hear this case as the first argument of the November cases.
Former federal and state prosecutors filed the only amicus brief in the case, supporting Foster and cautioning that if the court were to decide against Foster, it could mean the effective end of Batson challenges.
Spokeo, Inc. v. Robins
13-1339, 9th Cir.
If you were to ask a Court-watcher to briefly summarize the issues at stake in Spokeo, Inc. v. Robins, the likely response would involve separation of powers and whether Congress has the ability allow an individual to sue when no real injury has occurred. But the controversy also presents an important question apart from the particulars of the matter at hand: Do the facts of a case matter when there’s hot new law to be made?
Spokeo involves an alleged violation of the Fair Credit Reporting Act (FCRA), a 1970’s law that imposed regulation on credit monitoring agencies. Among the legislation’s provisions is a private cause of action that permits individuals to sue companies that violate the Act by reporting their information falsely. Thomas Robins brought a putative class action suit under this provision against Spokeo, Inc., claiming that the information aggregating company had shared false information about him, including that he was currently employed, was married with children, and had a graduate degree. The erroneous information, Robins contends, made it more difficult for him to find new employment and led to a protracted period in which he was out of work.
At trial, the District Court dismissed Robins’ case, finding that the harm to his employment prospects was too speculative and thus his complaint did not include the concrete, actual injury the Constitution requires to file a lawsuit. A unanimous Ninth Circuit panel reversed, holding that the FCRA had created a legal right, and that a violation of that right is sufficient injury for standing even in the absence of other harm.
In reaching its decision, the Ninth Circuit didn’t directly address how Robins’ alleged loss of wages and emotional stress bore on the question of standing. Yet this is precisely the argument that Robins continues to make: he did suffer a concrete injury, and the question of whether Congress can create a cause of action when identifiable harm hasn’t occurred simply isn’t presented by this case. With the briefs of the parties arguing past each other on this point, the federal government has stepped up to defend the Ninth Circuit’s reasoning. No doubt prompted by the sheer number of federal laws potentially affected by a reversal, the United States requested and was granted permission to participate in oral arguments.
Despite its position at the top of the proverbial food chain, the Supreme Court is still fundamentally a court of appellate jurisdiction, meaning that it is limited to deciding questions of law present in the case before them. Questions of fact, such as whether an injury occurred and was caused by a defendant, are reserved for trial courts. Hence, some observers predict that the case will end not with an answer to an important Constitutional question, but simply a decision that the matter turns on contested facts that the Court isn’t positioned to resolve.
November 3
Lockhart v. United States
14-8358, 2d Cir.
In a battle over grammar, the rule of lenity, which provides that in the case of an ambiguous criminal statute a court should find in favor of the defendant, might prevail. Lockhart v. United States is a case that, in part due to a circuit split, has made it to the Supreme Court based on two opposing canons of statutory interpretation. 18 U.S.C. § 2252(b)(2) provides in part that:
“Whoever violates [the federal possession-of-child-pornography law] shall be fined under this title or imprisoned not more than 10 years, or both, but . . . if such person has a prior conviction under this chapter, [other federal statutes], or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward . . . such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.”
The question on appeal is whether the phrase “involving a minor or ward” applies to all three phrases (“aggravated sexual abuse, sexual abuse, [and] abusive sexual conduct”), or just to the last phrase “abusive sexual conduct.”
Avondale Lockahrt was convicted of possessing child pornography, and was given a mandatory minimum sentence of ten years because of a prior state law conviction for attempted rape of his adult girlfriend. The government contends that the appropriate way to interpret the statute is through a canon known as “the rule of the last antecedent,” which, as applied here, would mean that “involving a minor or a ward” only qualifies the statement “abusive sexual conduct.” Reading the statute this way, Lockhart’s previous conviction against his girlfriend would be found to be unqualified “sexual abuse” and the mandatory minimum would apply.
Conversely, Lockhart posits that the canon of interpretation known as the “series qualifier” should apply. If this canon were applied to the statute, then “involving a minor or a ward” would apply to all three individual phrases of aggravated sexual abuse, sexual abuse, and abusive sexual conduct, and Lockhart’s prior conviction would not trigger the mandatory minimum sentence.
The government refutes Lockhart’s interpretation of the statute using the series qualifier canon, arguing that if the Court were to interpret the statue this way, it would treat federal offenses, which include non-minor-involvement sexual misconduct, differently than state offenses. While this argument persuaded the Second Circuit to find in favor of the government, the Sixth, Eighth, and Tenth Circuits have all determined that the clause “involving a minor or a ward” modifies all three preceding phrases.
Lockhart alternatively argues that the rule of lenity should apply, and it is this argument that may ultimately prevail if the Justices do not agree on which canon should apply. While Justice Scalia is well versed in canons of statutory interpretation, he, Justice Kennedy, and Justice Ginsburg have all previously authored opinions regarding the rule of lenity.
Torres v. Lynch
14-1096, 2d Cir.
Instead of creating an exhaustive list of all crimes that a non-United States citizen could commit that would preclude him or her from relief from the deportation process, Congress has identified categories of convictions that will trigger this result. What happens though, when a federal crime includes jurisdictional components of the offense that the state crime does not? This situation is the one that faces Jorge Luna Torres, who was convicted of attempted arson in the third degree in violation of New York state law. Torres, a citizen of the Dominican Republic, was ordered to be removed from the United States based on this crime. The federal version of this crime falls under one category of crimes that would exclude Torres from access to removal relief: aggravated felony.
However, the federal statute that governs aggravated felony provides that the property destroyed must be used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. Torres contends that the plain meaning of the words “described in,” used in the statute where Congress prescribes that preclusion from removal is triggered where the crime is one “described in” the categories, is simple. “Described in” means “described in”, not “described in except one element,” he argues. Additionally, Torres contends, Congress chose to define aggravated felonies by mention to specific federal statues as opposed to referencing general offenses. Finally, Torres argues, if there is any ambiguity, the Court should resolve the case in favor of him in accordance with the rule of lenity.
While the Third Circuit agrees with Torres’ interpretation of the statute, the government’s arguments are those that have been adopted by the Second Circuit. The government asserts that the criminal offenses should be viewed with a lens towards their substantive elements, not the jurisdictional ones. Additionally, the government argues, if the Court adopts Torres’ interpretation of the statute, then it is giving more weight to the federal convictions than to the state convictions, a result Congress surely could not have intended.
The Court’s decision has the potential to have important ramifications in the United States criminal justice system. A decision in favor of Torres will shrink the number of state-law convictions that render a person subject to removal or unable to obtain removal relief, where a decision in favor of the government will expand that same class.
November 4
Bruce v. Samuels
14-844, D.C. Cir.
The case Bruce v. Samuels stems from the petitioners’, including Antoine Bruce and Jeremy Pinson, initial suit brought against various Bureau of Prison officials where they challenged the constitutionality of Special Management Units (“SMUs”), which house gang-affiliated inmates or others who present security concerns. The petitioners challenged the creation of SMUs under the Eighth Amendment, which resulted in an additional lawsuit on top of many others that Samuels and Pinson were already filing.
The prisoners moved to proceed in forma pauperis, which, prior to 1996, allows qualifying indigent prisoners to file lawsuits in federal court without paying any filing fees. In 1996, Congress enacted the Prison Litigation Reform Act, which, among other things, changes the rules governing in forma pauperis prisoners. If the prisoner cannot pay the initial partial filing fee upfront, the amount that the prisoner must pay monthly towards this fee is capped at 20% of his monthly income.
The question before the Justices is whether, when appealing multiple lawsuits, the 20% cap applies on a “per-prisoner” or “per-case” basis. Under a per-prisoner approach, a prisoner would satisfy his monetary obligations sequentially, paying the fees from his earliest case first before moving on to his second case, etc. until 20% of his monthly income had been spent on fees. Conversely, the “per-case” approach would require the prisoner to make a payment towards each case he is appealing, so long as none of those individual payments was greater than 20% of his monthly income.
The DC Circuit concluded the correct approach was the “per-case” approach, agreeing with decisions from the Fifth, Seventh, Eight, and Tenth Circuits. Conversely, the Second and Fourth Circuits found it proper to apply the “per-prisoner” approach in these situations.
Shapiro v. McManus
14-990; 4th Cir.
When is a ruling “on the merits”, what makes a claim “frivolous,” and are three heads really better than one? These are the questions before the Court in Shapiro v. McManus, which involves a little-known federal law that requires certain classes of cases to be heard by a three-judge district court.
The three-judge structure has its roots in the 1908 Supreme Court decision Ex Parte Young, in which the court held that a district court judge could issue an injunction forbidding states from enforcing laws that the judge believed were unconstitutional. The decision angered states’ rights activists, who resented the power to undermine duly enacted local laws being placed in the hands of a single federal judge. In response, Congress passed the Three-Judge Court Act, which mandated that all questions involving the constitutionality of state and federal laws be initially heard by a tripartite panel containing at least one appeals court judge. Such a court, the reasoning went, would hold more authority and be less likely to hastily grant injunctions that were at odds with the local will of the people. And, by allowing the panel’s decisions to be appealed directly to the Supreme Court, matters would be resolved quickly and with a minimum of disruption.
Over the years, Congress has narrowed the scope of the Three-Judge Act, but the law remains in effect with respect to one key area: electoral redistricting. Indeed, many of the most prominent modern Supreme Court cases on the subject were appealed directly from trials before three-judge courts, including last Term’s Arizona State Legislature v. Arizona Independent Redistricting Commission and this Term’s Evenwel v. Abbott.
Shapiro arises from a challenge to Maryland’s 2011 redistricting plan, which a group of voters allege is the product of unconstitutional gerrymandering. At trial, a single district court judge dismissed the case for failing to state a legal claim, refusing to refer it to a larger three judge panel. Because the final ruling was made by a single judge, it was appealed to the 4th Circuit rather than directly to the Supreme Court, where the dismissal was affirmed.
Here’s the rub: in separate places, the statute outlining the procedure for convening a three-judge panel both requires a judge to notify the appropriate parties ”unless he determines that three judges are not required” and forbids a single judge from entering a ruling “on the merits” in a case that triggers the three-judge requirement. The sort of dismissal that occurred here is typically considered a judgement on the merits in other legal contexts. The one exception is when a case is dismissed for a lack of jurisdiction, meaning a federal court does not have the power to consider the case in the first place because its connection to federal law or the Constitution is “frivolous.”
The voters contend that the statute should be read to allow a single judge to determine that three judges are not required only when jurisdiction is so lacking. To do otherwise, they argue, would undermine the purpose of the law by allowing a single judge to examine the legal merit of a of a claim that was of the type reserved for a panel, and by prolonging the appeals process rather than minimizing disruption. Maryland state officials, on the other hand, argue that the “on the merits” language should be read to apply only should the judge decide to convene a panel, and that a quick, single-judge dismissal better fits the purpose of protecting states from having their laws undermined by a baseless injunction.
November 9
Montanile v. National Elevator Industry Health Plan
14-723, 11th Cir.
It’s something of a wonder that a case like Montanile v. National Elevator Industry Health Plan has made it to the Supreme Court. The facts as agreed to by all parties show a man who (arguably) should have reimbursed his health insurance plan for covered medical expenses and failed to do so. But, as with most things involving the federal Employee Retirement Income Security Act (ERISA), things are not nearly as simple as they seem.
The circumstances giving rise to the case are simple enough. In December 2008, Richard Montanile was severely injured during an auto accident with a driver who had been drinking, necessitating over $100,000 worth of medical treatment. Montanile’s employee insurance covered the cost of his care, and when he settled a personal injury lawsuit against the drunk driver for $500,000, the plan sought reimbursement. Montanile’s lawyer refused to pay, citing a contractual defect, and instead disbursed the settlement to Montanile, who promptly spent the money.
The complication arises from the terms of ERISA, a 1974 law governing employer pension and health plans. The law spells out who may sue whom with regard to a plan governed by the Act in extreme detail, and it notably does not include an action for damages by a plan administrator against a beneficiary for breach of contract. Instead, the insurance company sued Montanile under a catch-all provision that allows for “appropriate equitable relief.”
The line between equitable and legal relief descends from the English legal tradition, under which separate courts were historically maintained for cases seeking money and cases seeking performance of a specific action. In short, legal relief creates a general liability in a party to pay someone using whatever assets he possesses, while equitable relief generally consists of an order to do something, like to halt an offensive activity or hand over a specific piece of property.
Here, the insurance company argues that the matter should be governed by the previous Supreme Court case Sereboff v. Mid Atlantic Medical Services, Inc., in which the Court ruled that an order to hand over a distinct, recognizable fund could amount to equitable relief. In this case, though, Montanile contends that he was no longer in possession of any discrete account resulting from the settlement by the time the insurance company filed suit. Therefore, there is no identifiable object for him to convey, and equitable relief is not possible.
The case might be framed as fairness weighed against precedent. There’s no dispute that the insurance company payed for Montanile’s treatment with the expectation of being paid back upon completion of the personal injury suit. Yet the Court’s previous decisions on the subject, including 1993’s Mertens v. Hewitt Associates and 2002’s Great-West Life & Annuity Insurance Co. v. Knudson, appear to plainly bar the sort of recovery that the company is now seeking. With the solvency of ERISA plans potentially on the line, it’s anyone’s guess what interest will ultimately carry the day.
Kingdomware Technologies Inc. v. United States
14-916, Fed. Cir.
Kingdomware Technologies Inc. v. United States marks another chapter in the story of the Obama administration’s embattled Department of Veteran Affairs (VA). At issue this time is the scope of a Congressional mandate to award government contracts to businesses owned by disabled veterans, particularly with respect to small dollar, repetitive purchases.
Government contracts are typically assigned through a procedure outlined in the government-wide Federal Acquisition Regulation, which requires agencies to publish invitations for bidding and provide a reasonable time to respond before awarding a contract. The process is considered too inefficient and cumbersome for small dollar and repetitive supply contracts, though. Instead, an agency called the General Services Administration manages the Federal Supply Schedule (FSS), which allows vendors to advertise generalized goods and services at a specified price. When a need arises, a contracting officer may simply go to the FSS website, check the listings, and place an order.
For years, the government has had a standing goal of awarding 3% of its contracts to small businesses that are owned by disabled veterans. After consistently falling short, Congress decided in 2006 to make the VA a model for other parts of the Government to emulate. It passed the Veterans Benefits, Health Care, and Information Technology Act, which, among other things, called upon the Secretary of Veteran Affairs to set an agency-wide target for contracting with veteran-owned businesses that equaled or exceeded the goal set for the government as a whole. The Act requires the VA to follow the “Rule of Two” “for purposes of meeting the goals,” meaning that bidding for a contract should be restricted to only veteran-owned small businesses when the contracting officer believes from market research that two or more such companies will make reasonably priced bids.
Here, the controversy springs from the VA’s purchase of an emergency notification system through the FSS, which the agency has long held is not covered by the Rule of Two requirement. A protest was filed by Kingdomware Technologies, a D.C.-based IT company owned by a disabled Desert Storm veteran named Timothy Barton. Kingdomware argues that the statute gives the VA no choice but to apply the Rule of Two for every contract. A divided Federal Circuit disagreed, holding that the text of the statute unambiguously precluded this interpretation. The mandate prescribed the procedure only for meeting the Secretary’s established benchmark, and because the VA regularly met or exceeded its annual goal for contracting with veteran-owned businesses, it was within the agency’s discretion to skip the Rule of Two analysis on specific, individual contracts.
Regardless of how the case is decided, the fact that it is being argued at all may be a defeat for the VA. The agency has repeatedly been the subject of scandals over veteran care in recent years, culminating in the 2014 resignation of Secretary Eric Shinseki. At a time when the VA is no doubt attempting to craft a new image for itself, arguing against contracting with a disabled veteran in a high profile venue like the Supreme Court is unlikely to improve public perception of the agency.
November 10
Tyson Foods, Inc. v. Bouaphakeo
14-1146, 8th Cir.
In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court will decide where to draw the line between a “reasonable inference” and “trial by formula” in a class- or collective-action case. The case marks the next in a series of high-court decisions considering class certification, and the outcome may raise another bar to plaintiffs bringing cases en masse.
The controversy involves a meat-processing plant operated by Tyson Foods in Storm Lake, Iowa. The workers at the plant allege that Tyson violated the Fair Labor Standards Act (FLSA) by failing to compensate them for the time they spent putting on and taking off the protective and sanitary gear required for their job, including when these activities caused the employees to work more than 40 hours a week, necessitating overtime pay rates. The FLSA permits one or more workers to bring a “collective” private action for unpaid wages, similar to a class-action suit. Additionally, a local Iowa law permits workers to sue their employer for wages due under other sources of law, allowing the workers to bring a parallel suit under traditional class-action rules.
At trial, the district court rejected Tyson’s contention that the variance in the type of gear worn by the employees and the amount of uncompensated time each had accrued made the differences between individual plaintiffs too great to certify them as a class. The judge found that the underlying questions of whether Tyson’s policy was unlawful and the time compensable were common to the class and “predominated” over questions unique to each individual. A federal jury went on to determine that the employees should have been paid for much of the time claimed and awarded the class roughly $2.9 million.
Tyson’s argument centers on the manner in which damages were calculated. Based on employee testimony, video recordings, and a study conducted by an industrial-engineer, an expert witness arrived at the average time spent by employees donning and doffing their gear each day. These averages were then applied to each employee’s individual time-sheet to determine what they were owed. Tyson argues that this is the sort of impermissible statistical averaging that the Court decried in Wal-Mart Stores, Inc. v. Dukes. In Dukes, the Court held that a sexual discrimination class action against Wal-Mart could not be maintained because the details of each plaintiff’s claim were too particularized for a class-wide resolution. Further, Tyson contends that, because some of the workers in the class ultimately received no compensation when the formula was applied to their time sheets, they were not injured and thus it was improper for the class to be certified in the first place.
The workers (and the United States, who has filed a brief on their behalf) respond that the case actually falls under a burden-shifting framework established in 1946’s Anderson v. Mt. Clemens Pottery Co. In Anderson, the Court ruled that when it is difficult to determine how much an individual worker is owed because an employer failed to keep adequate records, reasonable inference can be made, and it then falls on the employer to show that the assumption is incorrect in the case of specific workers. The presence of uninjured workers in the class should have no bearing on the question of certification, the workers state, precisely because those workers ultimately were not compensated, and so their presence didn’t affect the size of the award.
Luis v. United States
14-419, 11th Cir.
Sila Luis was indicted in 2012 on fraud charges involving $45 million in allegedly illegal Medicare payments. Having spent most of the so-called “tainted” money on travel and luxury goods, Luis’ net worth is now substantially less than the $45 million that she allegedly received illegally. In an effort to be able to recuperate as much of the $45 million as possible in the case of a conviction, the government froze all of Luis’ assets, including both the remaining tainted funds as well as her untainted funds.
If a person is indicted on criminal charges, the government can freeze the defendant’s assets ahead of trial provided that the offense is one for which a criminal forfeiture may be imposed and also that if the defendant is convicted, the frozen property would be subject to criminal forfeiture. Luis argues that the freezing of untainted assets is a violation of her Sixth Amendment rights, but the government contends that it is freezing the untainted assets in an attempt to recover any funds in case of a conviction since the tainted money has been spent. In this case, the Justices will have to determine if Luis’ right to counsel under the Sixth Amendment outweighs the government’s desire to recover the full value of the funds contested.
The Court held nearly 25 years ago that pre-trial asset freezing did not violate the Constitution as long as there is probable cause that the defendants committed an offense that can lead to forfeiture and that the assets resulted from the criminal conduct. Last year, in Kaley v. United States, the Justices held in a 6-3 decision that probable cause was satisfied if a grand jury indicted the defendants. Luis contends that this case doesn’t apply to her because the government has already agreed that the frozen assets are not connected to the illegal activity.
Justice Kennedy, an outspoken critic of the government in the Kaley oral arguments, will be an interesting Justice to observe in next week’s oral arguments. In dissenting from the Kaley majority alongside Justice Sotomayor and Justice Breyer, he criticized the majority holding as having ramifications that would be at odds with the Constitution, stating: “Few things could do more to undermine the criminal justice system’s integrity than to allow the government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice.”
Post authored by On the Docket Fellows, Spencer McCandless and Talya Bobick.
